Disparate Treatment Claims

Disparate treatment refers to the less favorable treatment of female employees for reasons based on sex.

I think that a company policy adversely affects me because of my sex, how do I prove it?

You must show: 1. That you are a member of a protected group (i.e. a female); 2. That you were treated differently than a man for the same or similar conduct; and 3. That your protected status was a motivating factor, though not necessarily the only factor in the treatment.

What is the difference between disparate treatment and disparate impact?

To prove charges of disparate impact, a plaintiff would challenge facially neutral practices, procedures or tests to reveal that although they may not be intended to be discriminatory, they have a discriminatory effect. To prove charges of discriminatory treatment, a plaintiff must show that intentional discrimination was directed against a protected person or group.

What types of claims can be brought under disparate treatment?

The same types of claims that can be brought under disparate impact can also be brought under disparate treatment. Claims may include those relating to compensation, promotion, pregnancy, hiring and firing. The main difference is that you will need to show that your employer intentionally treated you differently because of your sex.

Are there times when an employment policy or practice may legally treat women different than men?

It is legal for an employer to place requirements on positions that differentiate between men and women as long as it is a necessary factor for performance. For example, being a man is a bona fide occupational qualification for functioning as a male clothing model. However, it is illegal for an employer to refuse to hire a female simply because customers or co-workers would prefer to see a man in that position.

What could my employer do to deny my allegations, and how do I respond to its denials?

Once you have shown that your employer treats you differently compared to similarly situated males in your position, your employer can refute your allegation by raising a legitimate reason for the disparate treatment. Your employer may assert that a particular sex is a bona fide occupational qualification. You can respond to and refute the legitimacy of your employer’s explanation by showing that the sex-based qualification is not reasonably necessary for performance of the job.